Contesting a Will (or contentious probate as it is often known) is sadly becoming increasingly common. Ministry of Justice statistics from 2017 showed a 300% increase, compared with 10 years earlier, in inheritance disputes handled by the High Court. Increasingly complex family structures, property price increases and the growing trend for DIY wills are just three of the reasons for the growth in this area of work.
Contesting a Will is however a specialist area of law and we strongly recommend that if you are thinking of Contesting a Will or getting involved in an Inheritance dispute, you need to choose a Lawyer who is really experienced in this area.
We have the expertise you need. Our Inheritance Claim Lawyers deal with Contested Wills locally throughout Wiltshire, Hampshire, Somerset and Dorset and nationally throughout England and Wales from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
Thinking of contesting a will? Our highly experienced team offer FREE initial phone advice with no strings attached. Call on FREEPHONE 0800 1404544 now.
Common Reasons for Contesting a Will
- Inheritance Claims– claims that dependants or family did not get ‘reasonable financial provision’ from the deceased’s estate under the Will or the intestacy rules (under the Inheritance Act 1975) – see below for more information. Such claims need proof that the person making the claim was financially dependent on the testator before they died. This is a complex legal area in which you should seek professional legal help from specialist probate solicitors immediately
- Claims that the will does not allow for gifts promised by the testator (ie the person making the will) before they passed on
- Professional negligence claims against solicitors or Will writers arising from negligently drafted Wills.
- Disagreements with or between between executors – click here to read more about executor disputes
- That the deceased lacked mental capacity when making the Will. Firstly, the testator must understand the nature of making the Will. Secondly, they must understand how much property they are giving away. Thirdly, they must know the claims which they are giving effect. If the testator has dementia or Alzheimer’s, their Will is much more likely to be contested
Click here to read more about Challenging a Will for Lack of Mental Capacity
- That the testator made the Will under duress or undue influence. This occurs the person writing their own Will is pushed to alter their Will, usually in favour of the person who is putting the pressure on them.
See below for more information on undue influence
- That the Will was fraudulent. This may be caused by an altered signature or destroyed will.
- That the Will was not validly made in the first place – or was badly drafted, containing errors or not making the position clear.
See below to read more about invalid wills
- That the will was wrongly executed – i.e. not completed as specified in the Wills Act. A correctly executed Will must be written, dated, signed and witnessed by two independent witnesses (non-beneficiaries)
- That the Will had already been revoked and is not effective
- That the Will is not the last Will of the deceased
Time limits for Making Your Claim
Time limits (as set out in the Limitation Act 1980) vary considerably according to the type of claim. Time limits in bringing any type of contested probate or inheritance claims are, however, strictly enforced. So it is critical that you get the right specialist legal advice as soon as possible.
In general, however, the main time limits for bringing any will contest claim are as follows :-
- For a beneficiary claiming against an estate – 12 years following the date of death of the testator
- For a dependency claim for maintenance under the Inheritance Act – 6 months from the grant of probate itself
- For will fraud -there is no time limit in cases of fraud involving wills
Our advice is simple – don’t risk losing your right to make a claim – get specialist legal advice ASAP.
How much does Contesting a Will cost?
We offer a FREE initial telephone consultation.
At that stage our disputed wills solicitors should be able to give you an estimate of our legal fees. You can then choose whether to go ahead with contesting the Will and decide whether you wish to instruct us.
Inheritance Act claims – Contesting a will due to inadequate provision
Many people believe that whatever a person writes in their will must be stuck to and cannot be changed. This is only partly true. Not only can a will be altered after the testator’s death [provided that all beneficiaries who are left worse off by any changes agree], but it’s also a legal requirement under the Inheritance (Provision for Family and Dependants) Act 1975 for a testator to make sure that certain classes of people are left with ‘reasonable financial provision’. If this has not been done, it may be possible to challenge a will.
›Who might make a claim?
Those who can apply to challenge a will include;
- a spouse or civil partner
- a former spouse or civil partner who did not remarry or enter a new partnership
- a child
- a step-child or adopted child or someone treated as a child of the deceased
- someone being maintained by or looked after by the deceased
- anyone else who lived with the deceased for a period of two years before their death
If you fall into any of these groups and feel you have not been properly provided for in a will, you may be able to challenge that will.
›Inadequate provision claim – what does the court look at?
The court takes a number of different factors into account when if there has been ” inadequate provision” including the following;
- The financial resources of the applicant
- Their applicant’s predicted future financial situation
- The deceased’s obligations and responsibilities towards the claimant
- The size and nature of the estate which was left in the will.
In the case of children, things are dealt with much more carefully. The education and training of the child is always considered, and for children who are not biologically related to the deceased, things can be trickier. For example, it will be considered whether or not the deceased had assumed responsibility for the child’s maintenance and upbringing and for how long this was carried out – as well as whether this was done with the knowledge that the child was not a biological relative.
The court will also take into account the new situation for the child in terms of who is then liable to maintain and look after him or her.
Undue influence and contesting a will
All Wills must comply with the Wills Act. This requires that the will is signed, dated and witnessed by two independent witnesses (neither of whom can be a beneficiary) in the presence of the Testator. If these rules are not adhered to then the will is rendered invalid.
The Testator must also have understood the nature of making the will, the extent of the property that he or she is disposing of and the claims to which they ought to give effect to, i.e. certain people such as spouses and children who may have a certain moral claim to their property.
What is Undue influence?
Undue influence occurs when the Testator (the person making the Will) has been coerced into altering their Will. Unfortunately issues surrounding undue influence are on the increase with the number of disputes now at record levels.
Contesting a will on the basis of undue influence, then,often involves cases where wills are altered close to somebody’s death or where the Testator may have been suffering from Alzheimer’s disease or another form of dementia. However, undue influence arising from a lack of capacity is very difficult to establish and expert evidence will be required to demonstrate the mental capacity of the Testator at the time the Will was executed.
Another reason often given for disputing a will is that the testator came under undue influence from of those who were to become beneficiaries when the will was being drawn up.
An experienced wills solicitor will be able to give advice on how challenges such as these can be avoided – again sometimes a medical report may assist. A good solicitor will also, in appropriate cases, insist that the testator is actually seen by the solicitor alone – to make absolutely sure of the testator’s own wishes.
Another common cause of will challenge cases are fraudulent wills (when signatures are altered or wills destroyed), lack of capacity of the Testator, incorrectly executed Wills, inheritance claims for financial maintenance and executor dispute cases where the Executor has acted unreasonably, or when the Testator has promised an inheritance to somebody close to them and then disinherited that person.
Contested Probate: The Difference Between A Valid And Invalid Will
If you are thinking about contesting a will and challenging probate, then you need to know exactly what makes a will invalid as opposed to valid.
Thinking of contesting probate? Call our highly experienced team on FREEPHONE 0800 1404544 for FREE initial phone advice – no strings attached.
What is a Valid Will?
All Wills must be correctly executed and comply with the Wills Act 1837. A valid will should be made by a person over the age of eighteen. The person must also be of sound mind, know completely what they are doing and the consequences of their actions. They should ideally seek legal advice before making the will as this means the will is much more likely to be valid than if they did it all themselves.
The will must also be written without undue influence from any party and the provisions set down by the document must be at the instigation of the testator. The will must be signed by the testator and witnessed by two people who are not beneficiaries.
The witnesses must also sign to declare that, to the best of their knowledge, the will is valid. If the will is appointing a guardian for a child, it must also be dated.
What’s more, any formal amendments to a Will (known as “a Codicil”) must be executed in exactly the same way as a Will for that amendment to be valid.
What makes a Will Invalid?
There are certain circumstances under which a will is invalid. In particular, if any of the above conditions are not met in a person’s will, then there could be grounds for disputing a will.
For example, if a will has not been signed by the testator and two impartial witnesses, it could be rendered invalid. Similarly, if you have evidence that the person was not of sound mind when they made the will, you can challenge it.
Remember that, by and large, people can choose to leave their estate to whomever they choose: proximity of relation to the deceased does not necessarily entitle you to an inheritance unless you were financially dependent on them.
If this is the case and you have been left out, then contesting a will may be an option. Otherwise, the only ground for disputing a will is if it is expressly invalid.
Contesting A Will When You Are Concerned It’s Not Valid
Contesting a will is a big decision to make as the process of doing so can often be long and draining. If you think, however, that the will in question is in some way invalid, then you may be entitled to contest it in an attempt to have it overturned.
A valid will is deemed to be one that was made by a person over 18, in sound mind, not under duress and in the presence of two witnesses, neither of whom can be beneficiaries and who must sign the will along with the testator. If one or more of these conditions fails to be met, then you may have grounds for successfully contesting the will.
Common reasons for an invalid will
There are many reasons why Wills can be found to be invalid. And the growth in the number of DIY Wills has inevitably seen an increase in the number of problems. Here are some of the most common grounds for invalidity:
• Was the person who made the will aware of what they were doing? Was the Testator not mentally competent and able to understand what they were doing when they executed their Will. If you fear that they had mental health issues and may have been confused when they made the will, then you might be able to contest it, as long as you have evidence.
Click here to read more about Mental Capacity and Wills
• Are you dealing with the probate process for the deceased? If you have reason to suspect that the person in question made a subsequent document that might have detailed different ways to divide the estate monies, then a also be grounds for contesting a will.
• Has the will been signed and witnessed properly? Contesting a will can often be tricky as courts tend to assume any will is valid until proved otherwise. Lack of signature could be grounds for challenging it, as could any evidence that the signature does not appear to be genuine
•Was the will made under duress? If the deceased didn’t actually intend to make a will and you can prove that they were pressured into it, perhaps by someone who was looking to make undue inheritance claims, then contesting it is an option.
• Is the will the genuine article? Often, if you cannot find the original copy of a will and are dealing with other copies, then you may be able to contest it on the grounds that the original was lost.
• Was the will forged? If you can successfully prove that it was an act of fraud by someone other than the deceased, then bought should declare that will to be invalid.
Marriage, divorce and the birth of children also usually cause automatic invalidation, revocation, or alteration of part or all of a Will. Partial invalidity can also occur when any witness to the Will is in fact also a beneficiary – when the gift to that beneficiary fails.
Probate – Proving Invalidity
The really important thing to remember is that you need to be able to prove any claim you make. When disputing a Will, the court will assume that it is valid until proven otherwise. Therefore the burden of proof is on the applicant.
Contesting a will often fails because there is simply not sufficient evidence to back up their claims. Without just cause for your case, it is likely that the court will rule in favour of upholding the will of the deceased as they must assume it’s a valid unless they can be persuaded otherwise.
If there are any doubts as to the Will being genuine it is always sensible to speak with the witnesses if they are still alive
What is a Probate Caveat?
If you are thinking of disputing a will, you can apply for a caveat. This means that no action can be taken in relation to the probate without first notifying you. It also sets into motion the legal process of the inheritance claim. You are advised to apply for a probate caveat as soon as you can.
Assets Transferred Prior To Death – Was It Suspicious?
Occasionally, after someone close to you has passed away, you might discover that they have transferred some of their assets to someone else prior to their death. Sometimes they will have had good reason for doing this with no cause for concern. However, if the transfer of assets seems out of character for them – and especially if they were elderly or vulnerable – it may help you to speak to a solicitor.
For instance, if you are worried that the person in question was unduly influenced and coerced into transferring over their assets, you may be able to contest the transaction. Also, if you suspect fraud or if the person did not have the capacity to make the decision over what to do with their assets, you may also have a case and so should seek legal advice.
Cases of assets transferred prior to death can often be complicated, especially as it isn’t always clear whether the assets in question were transferred willingly or not. This is why it is so important that you take specialist legal advice so you can find out more about your options and have your solicitor investigate the case to make sure the right steps are taken.
Challenging Wills and Professional Negligence Claims
If a Will has been negligently drafted by a solicitor or Will writer, then there may be a professional negligence claim available to those who have lost out.
Amongst examples of mistakes which can arise in Will drafting and which can lead to a negligence claim for negligence are:
- The Will is does not reflect the deceased’s wishes and causes a loss to a beneficiary
- Poor drafting results in the Will containing clauses which contradict the deceased wishes.
- The Will was drafted when the testator was without sufficient mental capacity (a legal requirement)
- The Will was not correctly executed, for example it was not signed in the presence of two witnesses (a legal requirement)
- The testator died before the Will was correctly executed due to a delay in completing the drafting by the solicitor or Will writer involved
Alternatively a claim for negligence could be brought in regard to a professional executor or administrator of the trust. This could be on the grounds of mishandling the assets i.e. a failure to invest them correctly.
Click here to read more about suing your solicitor for negligence